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Frequently Asked Questions Employee Relations

We have provided a sample of an action proposed under Part 432 in the
appendix to this booklet, but the real answer to this question lies in
your agency. Each agency has a "culture" that defines the amount of
information and documentation that will go into a proposal notice. At a
minimum, your notice will state which regulation the
action is being taken under, specify what critical performance
element(s) the employee failed to meet, cite the evidence of
unacceptable performance, and discuss the opportunity period (or the
lack of one). The notice will also explain to the employee the time
allowed for a written and/or oral response. Ask your human resources
specialist for some samples of other performance-based notices to get a
sense of what your agency requires.

Because the meeting is not disciplinary or investigatory in nature,
you are not obligated to allow union representation. The purpose of the
meeting is to explain your expectations of the employee and describe
any specific efforts you will be making to assist the employee in
improving his or her performance. Although any employee who is
being told that his or her work is unacceptable will view this as a
negative process, it is a meeting to discuss methods of assisting an
employee and is not disciplinary or punitive in nature.

One of the most important things to remember in taking notes is to
date them so they reflect when you met with an employee or when you
noted a particularly good or bad instance of performance. Keep track of
specific examples of poor performance on work assignments. Doing so
will make it easier for you to explain what's wrong with the employee's
performance through the use of examples. Note how you expressed your
performance expectations and how the employee responded to the
counseling. Once an opportunity period (see Step Two for
an explanation of an opportunity period) has begun, you will need to
make notes of all routine meetings with the employee. In addition, you
may need to keep a record of when assignments were given to the employee
and what instructions were provided.

Your first step always should be to convey a clear message to the
employee about what your performance expectations are. Performance
standards that do not relate to the job need to be rewritten so there
will be no confusion between your oral instructions or written guidance
and the performance standards themselves. If the new standards that you
have written are substantially different from the old ones, you will
need to give the employee a chance to work under the new standards
before you determine whether or not the employee's performance is
unacceptable. As discussed later in Step Three, you do not always need
to rely on formal performance standards, depending on the legal
authority under which you take action. But you run a serious risk of
either having your action overturned or mitigated upon appeal if the
employee can demonstrate that his or her performance expectations were
not clear.

No, you should not wait. In fact, good managers provide their
employees with performance feedback throughout the appraisal cycle. The
Office of Personnel Management reinforces this in its regulations where
it states that employees need to be notified of
unacceptable performance, "At any time during the performance
appraisal cycle that an employee's performance is determined to be
unacceptable . . . ." Notice also that the Governmentwide regulations
only call for a determination, not a formal rating of record. Check
with your agency on your internal policy regarding whether or not a full
performance rating needs to be prepared before you inform an employee
of unacceptable performance. Remember, regardless of whatever agency
requirements apply, no employee likes to feel "sandbagged" at appraisal
time, so confront the poor performance as soon as you become aware of
it.

The regulations require that an employee receive a decision in Part
432 actions within 30 days of the expiration of the 30-day notice
period. This provision automatically gives you a 60-day period of time
in which to work. Additionally, the Office of Personnel Management has
issued regulations that give agencies the discretion to extend the
initial 30-day notice period by another 30 days, so you are
actually working within a 90-day timeframe. However, there are always
those situations where even more time will be needed, perhaps because
the employee has asked for a lengthy extension to prepare a response or
the deciding official cannot gather and analyze all the information
needed within the 90 days allowed. 5 CFR Part 432 lists six reasons
that commonly cause delay and allows agencies to extend the notice
period if
those conditions exist. If your situation does not fall into any of
the six categories, the regulations provide that OPM can approve an
extension of the notice period based on a brief written request by the
agency.

There is no requirement for formal classroom training. One option is
to see how much of the training can be accomplished with the experts on
your own staff. On-the-job training is probably the most common form
of training provided during an opportunity period. Also, contact your
agency training officer and find out what is available through
self-instructional manuals, videos, or agency-funded training programs.

Once you approve leave, you cannot hold the employee accountable for
work that does not get done during the absence. In terms of short
absences, you may not have to adjust the deadlines or requirements at
all. However, if the employee is out for an extended time during the
opportunity period, you may need to extend the opportunity period for
the time of the absence to ensure that the employee has a chance to
perform acceptably. Depending upon the nature of the work, an
opportunity period shortened by approved absence may be valid if the
work assignments and expectations were such that the employee still had
the chance to demonstrate improved performance.

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